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Washington Hudson v. City of Hoboken

A-5765-96T1 (N.J. Super. App. Div. 1998) (Unpublished)

MUNICIPALITIES; ENCROACHMENTS; ADVERSE POSSESSION—Municipalities may grant licenses that allow a property owner to fence in and use municipal land. Possession so gained, being permitted by the municipality, does not provide grounds for an adverse possession claim.

A developer acquired a property that had been previously occupied by a supermarket. A prior owner had obtained municipal zoning board approval for a mixed retail-residential project that involved a four story building addition, a new twelve story building, and a new above ground garage. After the developer began its renovations, it was denied the additional building permits needed to complete the project. In connection with the denials, it was advised that it required municipal planning board approvals that could not come from the zoning board. In addition, the construction official threatened to bar the developer from continuing its use of the parking lot. A partial settlement resulted in the issuance of the needed building permits, but left the parking lot issue for resolution by the Court.

In a separate action that was consolidated into the developer’s suit, the municipality sought to have what it considered to be a fence encroachment by the developer removed. This issue arose out of an undisputed condition whereby, for years, a fence surrounding three sides of the parking lot had encroached on municipal property by several feet. More than seven years subsequent to erection of the fence, the municipality adopted a fence ordinance providing for five-year renewable, revocable licences for newly erected, encroaching fences. The ordinance “grandfathered” fences such as the one in question, provided they were not subsequently added to or altered.

The municipality argued that to allow the developer continued use of the municipality’s land inside the fence constituted violation of a state constitutional prohibition against private donation of land. The lower court rejected this argument and the Appellate Division concurred. Because the land and fence were the subject of a revocable licence, the developer could not claim a right by adverse possession. Lastly, if the fence were to be changed in the future, the municipality would regain the right to proceed against the developer.


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